When Reading Becomes Espionage

June 15, 2011

WikiLeaks has been on the public radar since release of sensitive documents from the Iraq War last year | Logo courtesy WikiLeaks

Few things worth serious attention are simple. But to follow the WikiLeaks case through traditional media, one could easily get an open-and-shut impression that the whole thing has little to do with Joe-on-Main-Street, with you and me and anyone with ears to hear. After all, the juggernaut-lion’s share of the WikiLeaks case that has evolved in the public eye since last year has focused almost exclusively on headline personalities such as Julian Assange, accused leaker Bradley Manning and the recently-subpoenaed Boston activist David House. But tales of the battle to extradite Assange or even lionize Manning obscure a key aspect mired in the WikiLeaks context that bears on everyone, not only a handful of martyrs: the Espionage Act, enacted 94 years ago today. In the same way that the much-reviled (and just as oft-renewed) Patriot Act vastly expands government ability to spy on citizens and collect evidence without warrant or even probable cause (and similarly the FBI has this week decided it now needs no credible suspicion or judicial oversight to follow you or even root through your garbage), the Espionage Act under which prosecutors seek to indict Assange et al fundamentally erodes civil liberties of privacy, thought, dissent and private communication. In the digital age, the Espionage Act casts a dangerously wide net to catch those engaged in “espionage”: the qualifications include being literate, boasting steady Internet access and maintaining a pulse.

Originally enacted in 1917 to quash detractors of WWI, the Espionage Act has been invoked in numerous instances since, not valorously to unmask spies and saboteurs but to quiet and intimidate pacificists and anti-war or anti-draft demonstrators, and to further the Red Scare (this is the statute under which the Rosenbergs were indicted). Some dangerously broad gems within the Act and subsequent amendments made this possible. Most relevant to the WikiLeaks and contemporary cases, the Act forbids the seeking, obtaining, transmitting or communicating of documents pertaining to the national defense “with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.”

Nixon sought unsuccessfully to prosecute Daniel Ellsberg under the Act for releasing to the New York Times in 1971 a damning government report on actions in Vietnam called The Pentagon Papers. In the Pentagon Papers case Nixon sought also to restrain the Times from publishing the leaked report. The Supremes ruled that the government had not made the case to legitimately injunct the Times from publishing the report because it had not demonstrated that such publication represented a “clear and present danger” (the long-standing precedent) to the national interest. Ellsberg was acquitted due to Nixon’s go-to strategy of burglary and wiretapping, this time of Ellsberg’s psychiatrist. (Honestly, if this isn’t looking familiar you should dust off your spectacles.) Justice Potter Stewart famously summed up in his concurring opinion:

In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry — in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For, without an informed and free press, there cannot be an enlightened people. [all emphasis mine]

N0w, this is a cherry-picked excerpt to be sure, as Stewart and the other justices outlined a considerable case for government discretion in maintaining secrecy. But the prevailing opinion was that secrecy must be balanced against the public interest and right of the people to check its government’s actions through informed consent and criticism.

Following the Pentagon Papers case, innumerable constitutional lawyers and scholars called for the repeal or drastic reining-in of the Espionage Act. The most influential, a 1973 report in the Columbia Law Review, found that the Act and similar legislation were so broad as to be “totally inadequate” and “poorly conceived and clumsily drafted,” hardly qualities one should demand of statutes outlining capital crimes. The authors lamented that “the longer we looked at [the Act], the less we saw,” concluding that muddled definitions of espionage “paralyze newspaper reporting on national defense affairs” and argued for a “justification defense” that weighed the importance of disclosed information to national security against its significance for public debate. No such common sense amendments have been made to the Act, however, and it remains as broad as ever.

At hearings held in December of last year before the House Committee on the Judiciary, constitutional lawyers and national defense watchdogs again made the case for reining in the Act. One argument stood out in particular: that the Act is so indiscriminate in painting espionage as to make simply accessing WikiLeaks’ disclosed cables an equal crime to leaking them. American University law professor Stephen Vladeck testified that

the Espionage Act does not focus solely on the initial party who wrongfully discloses national defense information, but applies, in its terms, to anyone who knowingly disseminates, distributes, or even retains national defense information without immediately returning the material to the government officer authorized to possess it. In other words, the text of the Act draws no distinction between the leaker, the recipient of the leak, or the 100th person to redistribute, retransmit, or even retain the national defense information that, by that point, is already in the public domain. [….] Whether one is a journalist, a blogger, a professor, or any other interested person is irrelevant for purposes of the statute. [all emphasis mine]

Note that this is a top scholar of law, not a conspiracy nut on a bender outside the drugstore. The paranoia as to the reach of the Espionage Act has reached such a fever pitch as to prompt pedestrian citizens to think twice about accessing the Iraq War Logs or recent leaks regarding US government involvement in rigging Haitian elections. These documents reveal critical aspects of the foreign policy conducted in the name of American citizens — to forbid or criminalize the simple act of reading them once in the public domain is to insulate policymakers and their agents from accountability and make the fuzziest of “spies” out of citizens seeking to discharge their duties and rights. It is inexcusable, and it is terrifying.

Now, luckily I do my best to recycle and compost, so the FBI will find little of interest in my dumpster. And in all seriousness my aim is not to heighten the paranoia and encourage backward glances over shoulders. But WikiLeaks is not primarily about Assange or Manning. It is about us, and about the information we’re “permitted” to access. And, trite as it may sound, it is about justice and bringing sanity to our system.